AIAL FORUM No. 70
THE INTEGRITY BRANCH OF GOVERNMENT
AND THE SEPARATION OF JUDICIAL POWER
Joseph Wenta*
The influence of the separation of judicial power on the development of Australia’s
governmental institutions is widely recognised. The generally strict approach to the
separation of federal judicial power has both facilitated and constrained the continued
development of the institutions and processes of government and of administrative law.
Institutions which test the boundaries of the Constitution continue to be designed; the
various accountability mechanisms of the ‘new’ administrative law provide relevant
examples.1 The identification of a ‘fourth’ or ‘integrity’ branch of government represents one
attempt to conceptualise and explain the wider range of accountability mechanisms
comprising contemporary Australian government. This paper examines the relationship
between the judicial branch and the ‘fourth arm’ of government, and explores the potential
impact of established constitutional principles on the development and operation of the
integrity branch.
This paper argues that the range of integrity functions performed by the judicial branch of
government and its members extends beyond judicial review of governmental action. While
judicial review of administrative action no doubt constitutes a significant proportion of the
integrity activity of the judicial branch, members of the judiciary are often asked to engage in
a wider range of integrity functions and processes. This activity often involves extra-judicial
functions. However, the constitutionality of extra-judicial activity remains unclear, and the
desirability of extra-judicial activity is contestable; this casts some doubt on the capacity of
the judiciary and its members to participate in the further development and operation of the
integrity branch of government.
The paper begins with an exploration of the concept of the integrity branch of government
and established constitutional principles affecting the interaction of the integrity branch and
the judiciary. Part I of the paper examines the nature of the integrity branch of government,
and identifies as ‘integrity functions’ a number of activities and processes performed by
members of the judiciary as extra-judicial activities. Part II outlines the development of the
separation of judicial power in the Australian context, with an emphasis on the development
and operation of the persona designata exception and the incompatibility condition. The
paper suggests that any interference with the decisional independence of judicial officers
performing functions as designated persons is likely to raise questions of incompatibility, and
will potentially compromise extra-judicial participation in the integrity branch.
Part III considers the extent to which established principles of Australian constitutional law
may permit members of the judiciary to perform a wider range of integrity functions. The
paper argues that participation of judicial officers in the operation of the integrity branch is
potentially accommodated by the persona designata exception to the strict separation of
judicial power. Further, the paper suggests that integrity functions and processes are not
necessarily incompatible with judicial office; careful attention must be paid to the nature and
mode of performance of each integrity function in order to ensure that an assessment of
*
Joseph Wenta is Sessional Academic, Newcastle Law School, University of Newcastle, NSW.
This paper was presented at the AIAL 2012 National Administrative Law Conference, Adelaide,
19 July 2012.
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incompatibility is accurate. Part IV of the paper evaluates briefly factors affecting the
desirability of extra-judicial participation in the operation of the integrity branch. While many
of the objections to extra-judicial activity have merit, this paper argues that extra-judicial
involvement in the performance of integrity functions is, on balance, an acceptable element
of modern government. While the separation of judicial power necessarily controls judicial
participation in the development and operation of the integrity branch, the paper concludes
that the separation of judicial power does not prohibit the participation of judicial officers in a
range of integrity activities and processes.
Part 1 The integrity branch of government
The ‘integrity branch’ is the most recent manifestation of a ‘fourth arm’ of government,2
intended to both interact with and supervise each of the legislative, executive and judicial
branches of government. Chief Justice Spigelman (as he then was) identified the core
responsibility of the integrity branch as ‘ensur[ing] that each governmental institution
exercises the powers conferred on it in the manner in which it is expected and/or required to
do so and for the purposes for which those powers were conferred, and for no other
purpose’.3 A wide range of institutions, including the executive, legislature and judiciary, the
public service, the Auditor-General, ombudsmen, ‘watchdog’ agencies (such as the
Independent Commission Against Corruption, the Police Integrity Commission and the Crime
Commission in the New South Wales context), civil society, the media and international
agencies have been included within the family of bodies that comprise the integrity branch.4
Early contributions to exploration of the integrity branch attributed a ‘semi-constitutional’
status to the fourth arm.5 However, integrity branch scholarship has increasingly recognised
the wider range of bodies and process that perform integrity functions. The integrity branch
has more recently been characterised as an ‘integrity system’, ‘[consisting] of the broad
range of institutions, processes, people and attitudes working to ensure integrity in the
exercise of our society’s many different forms of official power’.6 The concept of an integrity
system extends beyond institutions contemplated by the ‘semi-constitutional’ foundation to
include private sector bodies.7 The wide range of institutions, functions and process
comprising the integrity system has seen the integrity branch described as a ‘bird’s nest’,8 in
order to demonstrate that it is the combined effect of those institutions, functions and
processes which comprise the integrity branch that is of greatest significance. While some
institutions are no doubt quintessentially ‘fourth arm’, it is the totality of the integrity branch
that is most important.
Although this paper may appear to favour the ‘semi-constitutional’ conception of the integrity
branch by virtue of its subject-matter, the arguments canvassed are intended to apply
equally to the wider notion of an integrity system.9 Neither the ‘semi-constitutional’ nor the
‘integrity system’ account of the integrity branch is superior; each is developed with a
foundation in the same principles and ideas. Both constructions accept the significance of a
wider range of functions (extending beyond those performed by the traditional institutions of
government) in the operation and maintenance of a democratic system of government which
observes the rule of law. It is in this context that the arguments in this paper are developed.
Integrity functions and the judiciary
Integrity branch scholarship has long recognised that the judicial and integrity branches
intersect.10 However, the full range of integrity functions performed by the judiciary has not
been explored in detail. This section of the paper considers the relationship between the
integrity and judicial branches, both identifying the wider range of integrity functions
performed by judicial officers, and exploring the extent to which judges are in fact involved in
the performance of those functions.
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The integrity functions performed by the judicial branch and its members can be divided into
three categories. Judicial review of both legislative and administrative action forms the first
and most widely recognised integrity function performed by the judiciary.11 The availability of
an independent judiciary with powers to examine the legality of legislative and executive
activity is a core feature of the Australian integrity system. The second integrity function
performed by the judicial arm of government is the supervision of the institutions and
processes comprising the integrity system. An exercise of power to engage in judicial review
for the purpose of monitoring the integrity branch is arguably of a unique character; the
judiciary performs an essential integrity task by ensuring mutual accountability within the
integrity system.12
The extra-judicial13 performance of public functions by judicial officers should also be
recognised as a third broad category of integrity function. Examples of these functions
include participation in quasi-judicial review bodies; the conduct of quasi-judicial
investigations; and supervision or oversight of executive activity.14
Quasi-judicial review bodies
Judges often participate in the operation of quasi-judicial review bodies. A body or function
may be described as ‘quasi-judicial’ either where it is performed in a ‘judicial’ or ‘judicial-like’
manner or where it does not clearly involve the exercise of judicial power.15 Merits review
tribunals (such as the Administrative Appeals Tribunal (AAT)) are a prominent example of a
quasi-judicial review body.16 The task of a merits review tribunal is to ‘stand in the shoes of
the original decision maker’17 and to identify the ‘correct or preferable’ exercise of
administrative power.18 The AAT is then empowered to affirm, vary, or set aside the decision
under review.19
It is not immediately clear that the AAT performs an integrity function; the process of merits
review need not involve consideration of any factors other than what is ‘right’ or ‘fair’ in the
circumstances.20 However, although the power of the AAT in relation to questions of law is
limited, the Tribunal may be required to form an opinion on a point of law in order to
complete the task of merits review.21 Identification of the correct or preferable exercise of an
administrative discretion will almost certainly necessitate some consideration of the legal
boundaries placed upon a decision-maker; the Tribunal cannot make the ‘correct or
preferable’ decision without some appreciation of the nature and extent of the power to be
exercised. Review of legality, which would include the manner and purpose of the exercise
of power, is inherent in the process of merits review.22 It can be argued, therefore, that the
AAT performs an integrity function.
The AAT is an excellent example of a quasi-judicial body which involves judicial officers in
the extra-judicial performance of an integrity function. The President of the AAT must be a
Judge of the Federal Court.23 Additional Ch III judges24 can be appointed as presidential
members of the Tribunal.25 It has long been accepted that judicial members are appointed to
the AAT as persona designata.26 These provisions have been accepted as compelling some
adherence to the ‘judicial model [of decision making], separate from, and independent of, the
Executive’.27 Members of the judicial branch remain available to participate in the operation
of the Tribunal; the AAT reports that judicial officers comprised 20% of the membership of
the Tribunal in the 2010-2011 reporting period.28 However, former members of the AAT note
that the involvement of judges in the activities of the Tribunal has declined in more recent
years, particularly when compared with the operation of the Tribunal in its formative years. 29
These observations seem to be accurate; the AAT itself reports that judicial officers were
engaged in less than 1% of all hearings conducted by the Tribunal in 2010/2011.30 While
judicial officers are involved in the activities of the AAT, it seems that the extent of that
participation is not particularly extensive.
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Quasi-judicial investigations
Judicial officers have historically undertaken quasi-judicial investigative tasks such as the
conduct of Royal Commissions. A Royal Commission is an ‘ad hoc advisory [body]
appointed by governments to obtain information which is presented in the form of a report’,
and which can be deployed for an infinite variety of purposes.31 Prasser has developed a
typology for the classification of public inquiries, which allows broad categorisation of Royal
Commissions based upon the function that they perform.32 Royal Commissions may be
classified as ‘inquisitorial/investigative inquiries’, which ‘[investigate] allegations [of]
suspected impropriety or maladministration of individuals and organisations in both
government and the private sector [or] find the cause of a particular catastrophic event’.33
Inquisitorial/investigative Royal Commissions not only collect publicly available data and
receive evidence from witnesses, but may also utilise a range of coercive powers to gather
further information.34 Many inquisitorial/investigative Royal Commissions are conducted by
either active or former judicial officers,35 and in a manner that is broadly analogous with
judicial proceedings.36 ‘Public Advisory inquiries’, on the other hand, ‘are not concerned with
investigating allegations [or] improprieties … instead, their aim is to inform, summarise and
make suggestions to government on the possible solution to a particular policy problem’.37
Royal Commissions are widely identified as a component of the integrity branch of
government.38 However, it is submitted that only those inquisitorial/investigative Royal
Commissions directed to the investigation of allegations of impropriety and maladministration
truly perform an integrity function. Many Royal Commissions have been established in order
to examine systematic misuse of public power;39 the emerging trend seems to be to use
Royal Commissions almost exclusively for this purpose.40 Policy advisory Royal
Commissions, which focus primarily on the provision of information to government, are far
less likely to address questions of the use and misuse of public power.41 Consequently, it is
doubtful that policy advisory Royal Commissions are accurately described as an integrity
activity.
Royal Commissions are often mischaracterised as judicial inquiries, when they are more
appropriately regarded as manifestations of executive government;42 it is well-established
that the power to issue a Royal Commission stems from the prerogative.43 This may simply
be a by-product of the historical practice (in some jurisdictions) of conferring Royal
Commissions upon judicial officers (in their personal capacity).44 It is difficult to reach a
general view as to the extent of judicial participation in Royal Commissions. However,
Prasser’s study of governmental inquiries allows identification of some significant features of
the modern approach to the use of Royal Commissions and the selection of Royal
Commissioners. The Commonwealth is most likely to initiate an inquisitorial/investigative
Royal Commission; all Commonwealth Royal Commissions conducted after 1990 have been
inquisitorial/investigative in nature.45 Former judges are most likely to be tasked with the
conduct of a Royal Commission; all but one of the Commonwealth Royal Commissions
issued after 1990 have been conducted by a retired judge.46
Supervision of administrative activity
Judicial officers may also be involved (extra-judicially) in administrative processes which
seek to supervise and/or control executive activity. In some instances, rather than
undertaking an administrative task directly, judicial officers may supervise and either
authorise or prevent, the exercise of executive power. Although strictly speaking an
administrative task, this ‘supervisory’ process imposes a significant check on the activities of
the executive, as a judicial officer mediates the application of executive power to the
individual citizen. An example of this form of administrative function is the power to issue a
warrant. As the majority of the High Court in Kuru v New South Wales observed:
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Although the grant of a warrant is an administrative act, it is performed by an office-holder who is also
a judicial officer enjoying independence from the Executive Government and hence from the police.
This facility is thus an important protection, intended by Parliament, to safeguard the ordinary rights of
the individual … [The warrant is issued by] an officer who is not immediately involved in the
circumstances of the case and who may thus be able to approach those circumstances with
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appropriate dispassion and attention to the competing principles at stake. …
It is possible to characterise such a supervisory process as an integrity activity. The judicial
officer is not directly involved in the performance of a ‘primary’ executive activity (that is, the
judicial officer does not decide that particular action is necessary, and then proceed with that
action); rather, the judicial officer examines executive activity with a view to ensuring that the
activity is consistent with limits upon the power of the executive branch of government. It is
the ‘secondary’ or ‘supervisory’ nature of this involvement that merits recognition as an
integrity process. The purpose of involving a judicial officer in the warrant issuing process is
to ensure that the significant powers conferred upon the executive are exercised for the
purpose and in the manner intended by parliament.
Participation of judicial officers in processes of this nature has been the source of
controversy.48 Nevertheless, both the Commonwealth and New South Wales Parliaments
have continued to involve judicial officers in the administrative process of issuing warrants.49
In the Commonwealth jurisdiction, for example, eligible Ch III judges (being those judges
who have consented to the conferral of power to issue warrants in their personal capacity)
are empowered to issue telecommunications service warrants under s 46 of the
Telecommunications (Interception and Access) Act 1979 (Cth).50 Nominated AAT members
have also been permitted to issue warrants under the same provision since 1997.51 The
character of the available issuing authorities52 (and the real activities of those authorities)
has been monitored since that time.53 The data collected and published in accordance with
statutory requirements provides some useful insight regarding the true extent of extra-judicial
performance of the warrant issuing function.
Figure 1 (below) shows that Ch III judges have remained available to issue warrants under
the Telecommunications (Interception and Access) Act 1979 (Cth) s 46, and have formed
approximately 60% of the officers available to issue warrants under the provision for the last
10 years.54 Table 1 shows that the total number of officers available to issue warrants, and
the number of warrants issued, have both essentially doubled since the 1999-2000 reporting
period.55 The proportion of Ch III judges available to issue warrants has, however, remained
relatively stable at approximately 60% (Figure 1). Figure 2 shows that, while the proportion
of warrants issued by federal judges under s 46 was relatively low, between 5% and 7% in
the period 2001-2002 to 2005-2006; the proportion of warrants issued by federal judges has
increased in the period 2006-2007 to 2010-2011, reaching a peak of approximately 21% in
the reporting period 2009-2010.56 Finally, Table 48 in the 2010/2011 Report itself shows that
the identity of the issuing authority varies significantly between Australian jurisdictions.57
Collectively, this information demonstrates that judges both appear (and in fact continue) to
perform the warrant issuing function under the Telecommunications (Interception and
Access) Act 1979 (Cth),58 defying expectations that the function would be transferred to
nominated AAT members in the period following the 1997 amendments.59 If there is any
identifiable trend, it is that judges continue to make themselves available to perform the
warrant issuing function. It is not immediately apparent, however, that judicial involvement in
these activities is preferred. As Table 48 in the 2010/2011 Report shows, the identity of the
issuing officer differs significantly between jurisdictions. In many instances, this may be a
product of practicality or administrative practice rather than any preference for the
participation of judicial officers. However, it is clear that extra-judicial participation in this
particular warrant issuing function persists, and it appears likely to continue.
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Figure 1 -­‐ Availability of Eligible Judges and Nominated AAT Members to Issue Telecommunica>ons Intercep>on Warrants Ch III Judges % Nominated AAT Members % 80% 70% 60% 50% 40% 30% 20% 10% 0% Table 1 - Number of Authorising Officers and Number of Warrants Issued
Year
Total Authorising Officers
Total Warrants Issued
1997-1998
61
675
1998-1999
52
1284
1999-2000
53
1689
2000-2001
55
2157
2001-2002
66
2512
2002-2003
57
3058
2003-2004
58
3028
2004-2005
75
2883
2005-2006
69
3011
2006-2007
90
3279
2007-2008
92
3244
2008-2009
93
3220
2009-2010
101
3584
2010-2011
109
3313
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Figure 2 -­‐ Propor>on of Telecommunica>ons Intercep>on Warrants Issued by Eligible Judges and Nominated AAT Members 100% Ch III Judges % Nominated AAT Members % 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% What is to be made (collectively) of these examples of judicial participation in the integrity
system? The scale of judicial participation in these activities aside, judicial officers are at
least prepared to give the appearance that they will undertake extra-judicial activities. A
portion of these extra-judicial functions can be characterised as integrity functions; while the
identification of activities of merits review tribunals and Royal Commissions as integrity
functions is not necessarily controversial, the recognition of extra-judicial supervision of
executive action as an integrity process potentially represents an expansion of the integrity
branch concept. This is, however, consistent with the prevailing trend in integrity branch
scholarship favouring the recognition of a wider range of activities and processes as integrity
functions. Finally, we must note that these extra-judicial functions are performed by judges,
not as judges, but in their personal capacity. The scope of permissible extra-judicial activity
is a vexed issue in Australian public law. Two closely related questions arise; (i) Is the extrajudicial participation of judicial officers in the operation of the integrity branch of government
constitutionally permissible? (ii) Is the extra-judicial performance of a wider range of integrity
functions by judicial officers appropriate or desirable?
Part II The separation of judicial power
The Australian approach to the separation of federal judicial power takes, as its starting
point, the constitutional expression ‘judicial power of the Commonwealth’.60 A power or
function must be characterised as ‘judicial’ or ‘non-judicial’ before the principles affecting the
separation of federal judicial power can be applied.61 While the constitutional expression
‘judicial power’ is not easily defined, key features include the ‘binding and authoritative’62
determination of a controversy63 by application of ‘the law as it is’64 to facts ascertained by
the decision-making body65. No magical constellation of factors identifies any particular
power as ‘judicial’ or ‘non-judicial’;66 rather, an assessment of all relevant factors, including
the context in which the power is to be exercised, is required before a particular power is
characterised.67
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The strict separation of federal judicial power rests on two propositions developed by the
High Court in the first half of the 20th century, and ultimately affirmed in the Boilermakers’
case.68 The first proposition requires that the judicial power of the Commonwealth only be
exercised by federal courts established in accordance with the provisions of Ch III
Constitution.69 The second requires that federal courts be permitted only to exercise the
judicial power of the Commonwealth, or non-judicial functions that are incidental to the
exercise of judicial power.70 The first proposition has not been questioned.71 The second
proposition, however, has been the subject of some concern.72 The identification of
exceptions to the second element of the separation of federal judicial power has mitigated
the effect of that proposition.73 The persona designata exception is of particular importance
where the constitutionality of extra-judicial activity is considered.74
The persona designata concept
The persona designata concept has an extended history in Australian public law. As Walker
has noted, the concept appeared in the legal systems of the Australian colonies prior to
federation, and was addressed by the early High Court without apparent disapproval.75 At
this point the persona designata concept operated simply as a principle of statutory
interpretation;76 Gordon outlined the operation of the concept in relatively clear terms:
[The persona designata concept is applied] where a person is indicated in a statute … not by name,
but by his name of office or as one of a class [that is, as a judge]. Then question arises whether he is
meant in his [capacity as a judge], or whether the intention is to single him out … as an individual, the
77
reference to [the holding of judicial office] being merely a descriptive means of identifying him.
The persona designata concept also found life as an exception to the second element of the
separation of federal judicial power in Boilermakers’.78 In this context, the term ‘persona
designata’ is used ‘as a shorthand expression of a limitation on the principle of
Boilermakers’, acknowledging that there is no necessary inconsistency with the separation of
powers mandated by Ch III of the Constitution if non-judicial power is vested in individual
judges detached from the court they constitute’.79 Although the potential for the persona
designata concept to thwart high constitutional principle was immediately recognised,80 the
doctrine was not formally condemned.81
The High Court returned to the persona designata concept in Hilton, concluding that the
conferral of power to issue telecommunications intercept warrants on ‘Judges’ did not violate
Ch III of the Constitution.82 The majority (Gibbs CJ, Deane and Dawson JJ) applied the
persona designata concept in construing the relevant statute, concluding that the intention of
Parliament in conferring power upon ‘Judges’ was to empower the class of person to
perform the warrant issuing function in their personal capacity.83 While Mason and Deane JJ
accepted that the persona designata concept existed as a matter of ‘settled principle’,84 their
Honours maintained that ‘a clear expression of legislative intention’85 was required in order
for a function to be conferred on a judicial officer as a designated person. In concluding that
that the intention of Parliament to confer power upon Judges as designated persons was not
clear in this instance, Mason and Deane JJ noted as factors affecting their decision the use
of the descriptor ‘Judge’ to identify the class of person, the quasi-judicial nature of the power
in question, the absence of protection for ‘judges’ exercising the warrant issuing power and
the failure to seek consent of judges prior to conferral of the function.86 The concerns of
Mason and Deane JJ were largely addressed in a recasting of the statutory regime in 1987;
the majority of the High Court in Grollo effectively endorsed Telecommunications
(Interception) Act 1979 (Cth) s 6D as providing a formula which could be utilised validly to
confer a non-judicial function upon a judicial officer in their personal capacity.87
Although the persona designata concept was again subjected to criticism as an ‘elaborate
charade’88 designed to subvert the separation of federal judicial power, it seems that the
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concept remains of significance in Australian public law. Most significantly, the Constitution
does not expressly prohibit the conferral of extra-judicial functions on judicial officers.89
Second, the persona designata concept operates as an adjunct to the Boilermakers’ doctrine
(which is, at least presently, well established in Australian constitutional law), ameliorating
the strict nature of the proposition established in that case. Further, the practice of conferring
functions on judges as designated persons persists, and does not appear likely to cease in
the near future. Although each piece of legislation must be construed independently, both
the Commonwealth and New South Wales Parliaments seem inclined to utilise the statutory
formula that was accepted in Grollo. 90 As a result, the persona designata concept seems to
remain relevant both as a matter of constitutional principle and as a rule of statutory
interpretation which is of significance beyond the scope of the Boilermakers’ doctrine.
The incompatibility condition
Having recognised the capacity of the persona designata concept to effectively neutralise
the separation of federal judicial power, both the majority and dissenting opinions in Hilton
suggested that the operation of the concept should be limited.91 The ‘incompatibility
condition’92 was developed as a limit on the operation of the persona designata concept, with
the purpose of ensuring that the principles underpinning the separation of federal judicial
power were not compromised by the operation of the persona designata concept.93 The
incompatibility condition was explained in a trilogy of cases in the mid-1990s; in Grollo and
Wilson94 the High Court identified the scope and operation of the concept in relation to
federal judges, while the landmark decision in Kable considered the application of the
incompatibility principle to State courts forming part of the integrated federal judicature.
Development of the incompatibility condition
The decision of the High Court in Grollo cemented the incompatibility condition as a gloss on
the persona designata concept. In Grollo, a majority of the High Court confirmed that the
non-judicial function of issuing telecommunications intercept warrants was validly conferred
upon federal judges as designated persons, that function not being incompatible with judicial
office.95 The conferral of non-judicial functions on judges as designated persons was subject
to two conditions: the consent of the judge in question was required before a non-judicial
function could be validly conferred upon them; and, in addition, the non-judicial function
could not be ‘incompatible either with the judge’s performance of judicial functions or with the
proper discharge by the judiciary of its responsibilities as an institution exercising judicial
power’.96 The joint judgment in Grollo (Brennan CJ, Deane, Dawson and Toohey JJ) went on
to outline three circumstances in which incompatibility might arise; the performance of nonjudicial functions might require ‘so permanent and complete a commitment’ that the
performance of ‘substantial’ judicial functions was impractical (‘practical incompatibility’); the
nature of the non-judicial functions might compromise or impair the ability of the judge to
perform judicial functions with integrity (‘judicial integrity incompatibility’); and finally, ‘the
performance of non-judicial functions of such a nature that public confidence in the integrity
of the judiciary as an institution or in the capacity of the individual judge to perform his or her
judicial functions with integrity is diminished’97 (‘public confidence incompatibility’).98
The ‘public confidence’99 category of incompatibility was explored in greater detail in the
High Court’s later decision in Wilson. In Wilson, a majority of the High Court held that the
preparation of a report for the purposes of s 10 of the Aboriginal and Torres Strait Islander
Heritage and Protection Act 1984 (Cth) was incompatible with federal judicial office as it
would jeopardise public confidence in the independence and impartiality of the judiciary.100 In
order to determine whether public confidence incompatibility existed, the function under
consideration must satisfy the detailed criteria set out in the joint judgment of Brennan CJ,
Dawson, Toohey, McHugh and Gummow JJ. First, the statute conferring a function on a
judge as designated person must be examined; if the function is not ‘an integral part of, or
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closely connected with, the functions of the Legislature or the Executive Government’, no
incompatibility appears, and the inquiry ceases at this point (the ‘close connection question’).
If the function is part of or closely connected with the Legislature or the Executive
Government, the mode of performance is considered in more detail; if the function is not
performed ‘independently of any instruction, advice or wish of the Legislature or the
Executive Government, other than a law or an instrument made under law’, incompatibility
exists (the ‘decisional independence question’101). If the function must be performed
independently, the basis on which any discretionary power is to be exercised must be
explored; if a discretion is to be exercised on political grounds (that is, on ‘grounds that are
not confined by factors expressly or impliedly prescribed by law’), public confidence
incompatibility may exist (the ‘political grounds question’). Although ‘a judicial manner of
performance’ does not guarantee that a discretion will not be exercised on political grounds,
a failure to comply with the requirements of procedural fairness suggests that ‘it is unlikely
that the performance of the function will be … free of political influence or without the
prospect of exercising a political discretion’ (the ‘judicial manner qualification’).102
The close relationship of the incompatibility condition and the persona designata concept
virtually guaranteed that the incompatibility condition would endure a level of criticism. Those
concerned with the potential effect of the persona designata concept suggested that the
incompatibility condition did not go far enough to adequately safeguard the independence of
the federal judiciary.103 The public confidence incompatibility test developed in Wilson has
been impugned as inflexible,104 and is said to rely upon vague and indeterminate criteria (the
‘close’ connection and ‘political’ grounds questions).105 Despite recognising that the public
confidence incompatibility test has ‘not always been observed in practice’,106 the joint
judgment does not seem to contemplate circumstances in which the question of compatibility
(or constitutionality more broadly) requires some consideration of factors beyond those
found in the public confidence test. The approach of Gaudron J, who acknowledged
historical practice as permitting the performance of functions that might otherwise give rise to
incompatibility, presents a noteworthy contrast.107.
Incompatibility and persona designata in the States
It is widely acknowledged that the constitutional arrangements of the Australian States do
not require the strict separation of the judicial arm of government required by the federal
Constitution.108 However, the High Court recognised in Kable that it is beyond the power of a
State Parliament to confer upon State courts functions that are incompatible with the position
of those courts as potential repositories of federal jurisdiction.109 The High Court has also
recognised that the federal Constitution requires that there exist bodies fitting the description
of the ‘Supreme Court of a State’, with all the characteristics that the expression entails.110
Despite initially appearing to be a concept of restricted application, the Kable principle has
provided the basis for findings that legislation of State Parliaments impermissibly interfered
with State courts on several occasions.111
Given the proximity of the decisions in Kable and Wilson, it is unsurprising that the persona
designata concept was referred to in Kable. Perhaps most famously, McHugh J observed
that the interplay of the Kable principle and the persona designata concept remained
unexplored.112 The potential application of the persona designata concept to State judges
was not considered by the High Court until its decision in Wainohu.
Wainohu v New South Wales
The decision of the High Court in Wainohu addressed a number of important questions
regarding the role of the persona designata concept at the State level113 and the operation of
the incompatibility condition.114 These questions arose in relation to the power purportedly
conferred upon judges of the Supreme Court of New South Wales to designate a particular
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group as a ‘declared organisation’ for the purposes of the Crimes (Criminal Organisation
Control) Act 2009 (NSW) (CCOCA). The High Court found (by a 6:1 majority, Heydon J
dissenting) that the CCOCA was invalid as it impaired the institutional integrity of the
Supreme Court of New South Wales.115 Despite being concerned with State courts and
judges, Wainohu provides some insight as to the likely future application of the persona
designata concept and the incompatibility condition.
Although the persona designata concept is treated with varying levels of enthusiasm in
Wainohu, it seems that the concept remains relevant only as a factor in the process of
determining whether the institutional integrity of a State court is compromised. For French
CJ and Kiefel J the persona designata concept was simply an unwarranted complication in a
State jurisdiction not directly affected by a constitutionally mandated separation of powers,
and should not be elevated to the status of constitutional principle.116 Nevertheless, their
Honours noted that an attempt to confer a function on a judicial officer as a designated
person should be considered in determining whether the institutional integrity of a State court
was affected by a particular legislative scheme, but would ‘generally not be determinative’.117
The joint judgment of Gummow, Hayne, Crennan and Bell JJ seems equally reluctant to
adopt the persona designata concept as a matter of constitutional principle in relation to
State judges and courts.118
The future operation of the incompatibility condition (as it relates to functions conferred on
judicial officers as designated persons) after Wainohu is also uncertain. Although both
majority judgments in Wainohu refer to Wilson, neither clearly applies the ‘public confidence
incompatibility’ test articulated in the joint judgment in Wilson. While Gummow, Hayne,
Crennan and Bell JJ go so far as to rely upon the statement of principle found in Gaudron J’s
judgment in Wilson,119 French CJ and Kiefel J do not expressly rely upon any statement of
principle from Wilson.120 In what may be a related observation, French CJ and Kiefel J
suggest that precisely formulated tests are of little utility in attempting to engage in
evaluative judgments such as that associated with the concept of incompatibility.121 The
implication seems to be that the evaluative judgment regarding incompatibility is best made
without reliance upon a restrictive predetermined formula.
It is submitted that the reasoning in Wainohu indicates that emphasis should be placed upon
the decisional independence of a judicial officer when assessing the question of compatibility
of extra-judicial activities. The ‘decisional independence question’ and ‘judicial manner
qualification’, both key elements of the public confidence incompatibility test, are effectively
replicated in Gaudron J’s reasoning in Wilson.122 The approach adopted by Gaudron J has
the advantage of avoiding the two more contentious issues identified by the joint judgment in
Wilson,123 and seems to be framed in more flexible terms. This proposition is a shift in
emphasis; the absence of a strict separation of judicial power seems to diminish the
relevance of certain elements of the Wilson public confidence incompatibility test in the
context of State judges.124 It seems that any definitive re-examination of the Wilson
principles would be more appropriately undertaken in the context of extra-judicial activity
undertaken by federal judges.
The previously undeveloped concept of ‘practical incompatibility’ received limited attention in
Waionhu. Only French CJ and Kiefel J turn their attention directly to the quantity of extrajudicial activity, noting simply that the identification of declared organisations might well be
‘burdensome’.125 Although Gummow, Hayne, Crennan and Bell JJ suggest that the capacity
of the Chief Justice of the Supreme Court to withdraw a judge from extra-judicial activity126
might balance the risk of practical incompatibility,127 their Honours do not explain the source
of any such incompatibility in the case. The demands of the CCOCA were explored in oral
argument in Wainohu, with the parties accepting that a designated judge might be required
to spend months if not years undertaking extra-judicial activity under the CCOCA.128 The
plaintiffs contrasted this with the relatively minor time commitment associated with other
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forms of extra-judicial activity, such as addressing applications for warrants.129 Although
Wainohu does not suggest that a quantitative measure can be used to determine the
existence of practical incompatibility, it is suggested that the scale of the functions conferred
upon a judge should not be overlooked when addressing the question of incompatibility.
Wainohu does not indicate clearly the significance of a determination that practical
incompatibility exists. The High Court in Grollo130 suggested that practical incompatibility
goes directly to the validity of legislation conferring functions on judges as designated
persons; this reasoning appeared to be accepted by Gummow, Hayne, Crennan and Bell JJ
in Wainohu.131 However, French CJ and Kiefel J imply that practical considerations are more
directly related to the desirability of the conferral of extra-judicial functions.132 Were it applied
rigidly, the concept of practical incompatibility might cast some doubt upon the validity of
many long-established forms of extra-judicial activity.133 The approach of French CJ and
Kiefel J is perhaps best viewed as a pragmatic compromise which aims to incorporate
practical considerations in a wider evaluative assessment of incompatibility. This flexibility
would potentially alter the range of extra-judicial activity that might avoid invalidity as a result
of practical incompatibility.
The decision of the High Court in Wainohu leaves unanswered some significant questions of
constitutional principle affecting the capacity of judicial officers to engage in extra-judicial
activity. The High Court confirms that the persona designata concept cannot be used to
avoid the operation of the Kable principle and recognises the relationship of the concept of
incompatibility at both the federal and State levels. However, the High Court does little to
clarify the operation of the incompatibility condition and the public confidence incompatibility
test. Although the Wainohu majority seem to de-emphasise some of the more challenging
elements of Grollo and Wilson, the fate of the concepts developed in those cases is
ultimately unclear. While the decision in Wainohu relates specifically to State judges and
courts, and comments relating specifically to extra-judicial activities of federal judges might
best be regarded as obiter, the approach adopted by the High Court suggests that, in the
future, the incompatibility condition and the public confidence incompatibility test may not be
applied rigidly where incompatibility is assessed in relation to federal judges.
Persona designata, incompatibility and extra-judicial activities
Several important points emerge from the High Court’s development of the persona
designata concept and the incompatibility condition. The persona designata concept is
presently entrenched in the federal jurisdiction as a matter of constitutional principle, and will
likely inform (but not determine) any assessment of the effect of a legislative scheme on the
institutional integrity of a State court. The conferral of a function on a judicial officer as
designated person requires a clear expression of legislative intention. Factors to be
considered in determining the effect of legislation purporting to confer functions on judicial
officers as designated persons include the descriptor used to identify the designated person,
the nature of the power purportedly conferred, the source from which any decision of the
designated person derives its legal effect and the extent of the protection afforded the
designated person. The legislative formulation refined in the wake of Hilton, and effectively
endorsed by the High Court in Grollo, demonstrates clearly the legislative intention required
to confer a non-judicial function upon a judicial officer in an individual capacity.
A function conferred on a judicial officer as a designated person (or simply undertaken by a
judge in a personal capacity) must not be incompatible with judicial office. Incompatibility
might be found to exist where extra-judicial activity diminishes public confidence in the
capacity of an individual judge or the judiciary, as an institution, to perform judicial functions
with integrity. ‘Public confidence’ may be diminished where the judicial officer does not retain
decisional independence in the performance of an extra-judicial function, or where an extrajudicial function is to be exercised on political grounds. A judicial manner of performance of
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the function in question influences the approach to issues of both decisional independence
and political grounds. Incompatibility might also be found to exist where the performance of
extra-judicial activity is practically incompatible with ongoing performance of judicial
functions.
The participation of judicial officers in extra-judicial activities remains constitutionally
permissible. However, the range of activities which might be validly conferred upon judicial
officers in a personal capacity is narrowed by the operation of the incompatibility condition.
The precise scope of extra-judicial activities that might be compatible with the retention of
judicial office remains uncertain; the question of compatibility is one of substance rather than
form, and cannot be resolved without reference to a particular function or activity.134 This
means that individual legislative schemes and functions must be assessed with reference to
the criteria of compatibility established by the High Court.
Part III The judiciary and integrity functions: incompatible?
The question that remains is whether integrity functions (as a subset of extra-judicial activity)
might be validly conferred on judicial officers as designated persons or undertaken by
judicial officers in their individual capacity. Integrity functions that cannot be validly conferred
upon a Ch III court might be validly conferred upon Ch III judges as designated persons (or
exercised by judges in their individual capacity), subject to satisfaction of the incompatibility
condition. As the validity of the conferral of a function on a judicial officer requires
consideration of the substance of the statutory regime under which the function is conferred,
it is again necessary to address each of the examples identified individually. The statutory
scheme purportedly conferring extra-judicial power is assessed, and questions of decisional
independence and practical incompatibility are considered in relation to each function or
activity.
Quasi-judicial review bodies
The participation of judges as presidential members of the AAT has been the source of
controversy since the inception of the Tribunal. In Drake, the Full Federal Court found that
judges were validly appointed to the AAT as designated persons,135 a conclusion which has
subsequently been endorsed by the High Court.136 More challenging questions arise when
the compatibility of AAT membership with the retention of judicial office is assessed. While
the question of public confidence incompatibility has been the source of some concern, the
joint judgment in Wilson persuasively asserted that the AAT retains decisional independence
in conducting merits review.137 Applications for merits review are assessed in accordance
with the procedure established by the Administrative Appeals Tribunal Act 1975 (Cth).138
Further, the AAT is free from direction in the form of governmental policy.139 While the AAT
has wide remedial powers, those powers are not exercised in accordance with executive
direction; the AAT conducts a hearing de novo before determining the ‘correct or preferable’
outcome in any given matter.140 When combined, these factors demonstrate the
independence of the Tribunal in the performance of its functions. The fact that the AAT tends
to undertake activities in a manner reflective of judicial method also supports this conclusion.
Questions regarding the extent to which the procedure of the AAT might be constrained
without affecting the perception that the Tribunal is independent of the executive government
remain. In Hussain, the Full Federal Court addressed (in obiter) the validity of ss 39A and
39B of the Administrative Appeals Tribunal Act 1975 (Cth), which affect proceedings in the
Security Appeals Division of the AAT.141 Despite recognising the divergence of opinion
regarding the desirability of the provisions, Weinberg, Bennett and Edmonds JJ concluded
that the participation of a presidential member in the operation of the Security Appeals
Division of the AAT was not incompatible with Ch III judicial office.142 Although the statutory
regime would potentially deprive an applicant of procedural fairness in the form of a fair
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hearing, the Tribunal was said to retain its decisional independence; despite the modified
procedure, the Tribunal retained power to vary or set aside the decision under review.143 In
this sense, the conclusion in Hussain appears to be consistent with the principles identified
in Wilson and affirmed in Wainohu; ss 39A and 39B certificates do not limit the power of the
AAT to examine in full the evidence considered by the original decision maker, and to
determine the correct or preferable outcome in the circumstance.144 Further, certificate(s)
issued under ss 39A and/or 39B would seem to be ‘an instrument made under law’, which
the Wilson joint judgment did not regard as interfering impermissibly with the decisional
independence of the designated judge.145 It would seem that the provisions do not, on their
face, restrict the decisional independence of the Security Appeals Division of the AAT and
the presidential members involved in its activities.
However, the challenge might be found in the departure from a judicial manner of
performance required by the provisions. By depriving the person seeking review in the
Security Appeals Division of the AAT of both the opportunity to know the material informing
the decision maker and the chance to comment on that material, the fair procedure generally
associated with the Tribunal’s activities is removed.146 It is well established that the
requirements of procedural fairness are not static, and that the standard of conduct expected
of on administrative decision-maker is not that required of a judicial officer.147 Nevertheless,
the fact that a judicial officer is involved in a process which does not require a fair hearing
might suggest an absence of decisional independence (or at least create the appearance of
the absence of decisional independence), and casts some doubt on the compatibility of the
function with judicial office.
An assessment of practical incompatibility associated with membership of the AAT requires
careful analysis. It seems clear that appointment as President of the Tribunal requires a
substantial commitment of time, which would effectively prevent the performance of
substantial judicial activities.148 However, the mere fact that judicial officers are available to
serve as members of the AAT in their extra-judicial capacity poses no immediate threat of
practical incompatibility. The AAT itself reports that judicial officers participate in less than
1% of hearings conducted by the Tribunal.149 It seems unlikely that any individual judicial
member of the AAT, other than the President, is involved in the activities of the Tribunal to
an extent which compromises their capacity to engage in judicial activities. Put simply, it is
not clear that merely accepting appointment as a member of the AAT generates practical
incompatibility.
Ultimately, it seems that the participation of judges in the activities of quasi-judicial review
bodies such as the AAT is constitutionally permissible. Indeed, the example of the AAT
demonstrates effectively the manner in which judicial officers (as designated persons) can
be involved in a review process which ensures that they retain decisional independence, and
avoids ongoing involvement in integrity functions to an extent which compromises ongoing
performance of judicial functions. However, the example of the AAT also demonstrates the
potential for any interference in the decision-making process (in which a judicial officer is
involved) to cast immediate doubt upon the compatibility of a function with judicial office. The
mere fact that a judicial officer has accepted an appointment to a quasi-judicial review body
which performs integrity functions does not generate incompatibility.
Quasi-judicial investigations
Quasi-judicial investigative tasks may also be validly conferred upon Ch III judges in their
personal capacity. In the Commonwealth jurisdiction, the Royal Commissions Act 1902 (Cth)
allows the Governor-General to issue a Royal Commission to ‘a person or persons’ of their
choosing.150 Although this provision does not evidence an intention to confer power upon a
judicial officer as a designated person,151 features of the legislative scheme indicate an
awareness that the provision may be used to confer a Royal Commission on a judicial officer
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in a personal capacity.152 The widely held view that the power exercised by a Royal
Commissioner is non-judicial supports this conclusion. Although the Royal Commissions Act
1902 (Cth) does not attempt to confer a function on a judicial officer as a designated person,
it contemplates that judicial officers will perform the function in their individual capacity.
The question that remains is whether the performance of a quasi-judicial investigative task
such as a Royal Commission is compatible with the retention of judicial office. The ‘person’
conducting an inquisitorial/investigative Royal Commission concerned with the exercise of
public power153 is empowered to review and report upon the manner in which public power
has been exercised, and may identify measures which might ensure that public power is
utilised appropriately in the future. An inquiry of this nature is largely retrospective, focusing
primarily on past conduct before addressing any future concerns. Although interaction with
the legislative and executive arms of government may be necessary in exploring past
conduct, the expectation is that the task will be performed free of executive direction. A
judicial mode of performance, including public hearings and reporting, reinforces the
conclusion that power is exercised free of influence.154 The appointment of a judicial officer is
often said to be an indication that independence from political influence exists.155 However,
an argument that decisional independence exists because a judicial officer is responsible for
the conduct of a function, and that the function is therefore compatible with judicial office
seems to be somewhat circular. Ultimately, it is difficult to conclude with certainty that
decisional independence is retained by a judicial officer performing a quasi-judicial
investigative activity such as a Royal Commission.
Quasi-judicial investigative tasks raise serious questions of practical incompatibility. The time
commitment involved in the conduct of a Royal Commission is likely to be measured in
months if not years. While seven Royal Commissions were issued by the Commonwealth
government in the period between 1990 and 2006, on only one occasion was the final report
presented within 12 months of the date of the letters patent.156 Further, the conduct of a
Royal Commission may require the judicial officer to withdraw completely from performance
of judicial tasks. However, it seems that questions of practical incompatibility alone may not
provide a sufficient basis for a conclusion that the incompatibility condition has been
breached.157 Much is to be said for an assessment of the actual practical incompatibility
associated with a particular activity, in conjunction with other relevant factors, before
reaching a conclusion that incompatibility exists.158
Significant questions remain as to the compatibility of extra-judicial investigative activities
with judicial office. It is not clear that judicial officers would retain decisional independence,
and the significant practical effects of such activities cannot be overlooked. While past
practice might be considered as a source of guidance, the conduct of Royal Commissions
has proven so controversial that no uniform historical practice can be identified in the
Australian context.159 However, those judicial officers who have accepted and conducted
Royal Commissions have done so in their individual capacity.160 It is difficult to reach a
confident conclusion as to the validity of legislation purporting to confer these integrity
functions on judicial officers in their individual capacity.
Supervision of executive activity
It is clear that the power to supervise administrative activity may be conferred upon judges in
their individual capacity; the example of the warrant issuing function under s 46 of the
Telecommunications (Interception and Access) Act 1979 (Cth), conferred upon eligible
judges under s 6D of that Act, has been addressed by the High Court in Grollo.161 Despite
concluding (in Grollo) that the warrant issuing function was not incompatible with an eligible
Judge’s judicial office,162 the High Court has not been required to apply the more detailed
public confidence incompatibility test developed in Wilson in this particular context.163
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The compatibility of the warrant issuing function with the retention of judicial office is
uncertain. Judicial officers performing that function as designated persons may retain
decisional independence; although judicial officers may receive information from the
executive government,164 and can even seek further information if required,165 such material
is received in accordance with law. The relevant legislation also identifies the standard an
application must meet, reducing the appearance of subjective or politically motivated
decision-making.166 However, the warrant issuing process can be sharply contrasted with the
regular manner of judicial activity. The warrant is (of necessity) issued ex parte, and the
eligible Judge neither retains detailed records nor produces reasons for a decision.167 As
with the AAT, the absence of a fair hearing (when compared with the contested adversarial
hearing that judges generally oversee) immediately generates concern. However, the
integrity process would not, in this instance, involve any hearing (excepting the limited
hearing available in the context of the AAT discussed above). This would seem even more
likely to suggest an absence of decisional independence, and casts doubt on the
compatibility of the warrant issuing process with the retention of judicial office.
It is not clear that the process of issuing warrants creates practical incompatibility. While Ch
III judges remain available to issue warrants under the Telecommunications (Interception
and Access) Act 1979 (Cth) s 46, it does not appear that participation in that process
compromises performance of judicial activities. If the assessment above is accurate, and the
commitment of judicial officers to participation in the warrant issuing process can in fact be
measured in minutes,168 it does not seem likely that practical considerations will influence
greatly a determination of compatibility in this instance.
The better conclusion may be that the warrant issuing function is prima facie incompatible,
as a consequence of significant questions as to the decisional independence of the judicial
officer engaged in the activity.169 Historical practice may, however, allow the warrant issuing
function to be performed by judges despite the appearance of incompatibility. Of particular
relevance are the observations of Gaudron J in Wilson, which suggest that participation of
judicial officers as individuals in the warrant issuing process might be constitutionally
permissible; the weight of historical practice is said to ensure that judicial participation in the
warrant issuing process does not generate incompatibility by jeopardising public confidence
in the judiciary.170
The potential application of the incompatibility condition in these three contexts reinforces
essential features and elements of the established legal principles. These examples
demonstrate the capacity of the incompatibility condition to produce varied results in what
might, at least superficially, appear to be similar circumstances. The significance of
decisional independence is again highlighted; it seems that any measure which permits
interference with the process in which a judicial officer participates as a designated person
(or in an individual capacity) immediately generates doubt as to the decisional independence
of a judicial officer. It seems that decisional independence is most effectively maintained
where the judicial officer (as designated person) participates in the operation of an
established body, and engages in an established procedure which shares a range of
features with the judicial process.171 Although Wilson suggests that directions made under
law do not interfere with decisional independence, doubts must still exist where those
directions permit (or require) a departure from the rules of procedural fairness.
The link between the focus on process when identifying integrity activities and the emphasis
on an unimpaired process when assessing the potential validity of extra-judicial performance
of those functions (in this Part) merits further exploration. The similarity may be purely
coincidental. It may be that participation in a ‘proper’ process provides some reassurance
that extra-judicial activity is ‘safe’ in the sense that judges are, and appear to be, free from
interference which might compromise the neutrality of their activities. Concern with the
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appearance of independence is central, not only to the validity of extra-judicial activity but
also to the desirability of judicial participation in those functions and processes.
Part IV Judicial officers and integrity functions: the merits
The prudence of extra-judicial activity (in general terms, extending beyond integrity functions
and processes) has proven a divisive topic in the Australian context. It is clear that
maintenance of the independence and impartiality of the judiciary is the most critical factor in
any assessment of the merits of extra-judicial activity.172 Almost all contributions to discourse
regarding the merits of extra-judicial activity cite the independence and impartiality of the
judiciary as a critical factor influencing identification of the extra-judicial functions (if any)
which should be undertaken by judicial officers. Those who support extra-judicial activity
argue that judicial participation ensures the independence and integrity of functions
conferred upon judges.173 However, those who regard extra-judicial activity (or particular
forms of extra-judicial activity) as inappropriate assert that judicial participation in functions
associated with the executive or legislative arms of government potentially compromises the
reputation of the judiciary for independence and impartiality,174 particularly where those
functions provide the potential for political controversy.175 The ultimate extension of this
argument is that judicial officers must avoid all extra-judicial activity, lest the reputation of the
judiciary be compromised. The two positions generate a paradox; the reputation of the
judiciary for independence and impartiality becomes the primary argument both in support of
and against the conferral of extra-judicial functions.176
Attempts have been made to identify a compromise, which would allow allocation of a wider
range of tasks to judges without generating the perception that the reputation of the judiciary
has been sacrificed. Writing extra-judicially, Sir Gerard Brennan suggested that the conferral
of a function upon a judge is defensible where ‘indifference’ as to outcome is the reason for
selecting a judicial officer as the repository of power.177 It is submitted that the integrity
functions require dispassionate assessment of the manner and purpose of the exercise of
power, with the result that extra-judicial performance of those functions might be more
readily regarded as appropriate. Further, many of the integrity activities addressed above
share a range of characteristics with the judicial method; this may enhance the appearance
of neutrality. Further still, some integrity activities do not substantially affect the capacity of a
judicial officer to perform judicial duties. It is submitted that the independence and
impartiality of the judiciary is not necessarily compromised by extra-judicial performance of
integrity functions.
The significance of judicial skill and experience is often cited as a factor motivating the
conferral of extra-judicial functions on judicial officers. Judicial officers are skilled in
conducting open public hearings, are readily able to interpret and apply relevant legal
principles, are practised in the collection and analysis of large bodies of evidence178 and are
experienced in the production of written reasons explaining decisions.179 Judicial experience
in the conduct of a fair and unbiased hearing will also assist bodies in ensuring that the
requirements of procedural fairness are observed. Each of these attributes is essential to the
effective operation of the integrity branch. While neither the AAT nor a Royal Commissioner
can resolve conclusively questions of law, any examination of the exercise of public power
will of necessity require consideration of the nature and extent of that power. The activities of
the AAT and Royal Commissions are generally conducted in public, and will often require
attention to significant bodies of evidence and law. It would seem that judicial officers are
particularly well-suited to these tasks.
Extra-judicial performance of integrity activities legitimises fourth arm institutions and
practices. The participation of judicial officers can confer legitimacy upon institutions,
functions and processes; the significance of judicial participation in the formative years of the
AAT provides a notable example.180 The involvement of judicial officers might also add
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authority to the output of an integrity institution or process.181 However, the capacity of the
legitimising effect of judicial participation to threaten the reputation of judicial officers as
neutral and nonpartisan arbiters of disputes must be recognised. This concern becomes
particularly significant where a judicial officer is appointed for what appears to be a political
purpose, in order to legitimise the substantive outcome of an activity. While it is appropriate
to be wary of such developments, it is submitted that concern is limited when the legitimising
effect of judicial participation is confined to an institution or process. Where a judicial officer
is appointed to an institution or process independently of the subject-matter of integrity
activity (an appointment to the AAT, for example), any legitimising effect of the appointment
of a judicial officer is confined to that institution or process itself. Such a legitimising effect
does not represent a threat to the reputation of the judiciary for independence and
impartiality.
It could be argued that retired judges might more appropriately undertake integrity activities
and functions.182 Many retired judges have undertaken investigative tasks in the nature of a
Royal Commission,183 with some retired judges also accepting statutory office.184 The
contribution of retired judges to the operation and maintenance of the integrity system should
certainly not be underestimated. There may be integrity functions which demand judicial
skills and expertise but which are not compatible with the retention of judicial office; it is in
relation to those activities and processes that retired judges may play an essential role in the
operation of the integrity system. However, the availability of retired judges alone does not
mean that ‘active’ judicial officers should be excluded entirely from participation in the
integrity branch where the conferral of integrity functions is constitutionally permissible.
It is submitted that analysis of the merits of judicial participation in the integrity branch might
best be focused on the nature and demands of particular integrity functions and processes. It
seems inconceivable that any attempt would now be made to justify the participation of
judicial officers at high levels of executive government.185 It also seems unlikely that any
superior court would now allow one in four of its members to become involved in extensive
extra-judicial activities at any given time.186 Although historical practices should not be
forgotten or ignored, it is submitted that debate as to the merits of extra-judicial participation
in the integrity branch might best be informed by contemporary attitudes. Not all integrity
functions are performed in a manner averse to the judicial function; in many instances, the
decisional independence of a judicial officer acting as a designated person is carefully
protected. Not all the integrity activities in which judicial officers might participate require
substantial commitments of time (and perhaps other resources). Each integrity function,
activity or process is best examined on its own terms, in order to determine whether extrajudicial participation in the operation of the integrity branch is appropriate or desirable.
In 2007, the Australian Institute of Judicial Administration set out guidelines for decisionmaking in relation to the participation of judicial officers in extra-judicial activities:
Principle and protocol require that if the executive government is seeking the services of a judge for a
non-judicial appointment, the first approach should be to the head of the jurisdiction, seeking the
approval of that person for the appointment of a judge from that jurisdiction, and approval to approach
the judge in question. The head of the jurisdiction will consider the propriety of the judge accepting the
appointment, with particular reference to the maintenance of the independence of the judiciary and to
the needs of the court. The head of the jurisdiction will consult with other members of the jurisdiction
as may seem appropriate. If there is no objection in principle, the head of the jurisdiction will consider
whether the judge can be made available, and whether the first approach to the judge in question
187
should be from the head of the jurisdiction or from a representative of the executive.
This approach is particularly apposite in the context of integrity activities and functions. While
there may be occasions where extra-judicial participation in the integrity branch is clearly
inappropriate, this is not always the case. However, any decision as to the suitability of
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judicial participation in the integrity branch ultimately remains a matter for the judicial branch,
the head of jurisdiction and the individual judicial officer in question.
Conclusion
Members of the judicial branch of government contribute to the operation of the integrity
branch. Judicial participation in the fourth arm extends beyond the core public law function of
judicial review of governmental action to incorporate a wider range of integrity activities and
processes. In an extra-judicial capacity, members of the judiciary participate in quasi-judicial
merits review bodies such as the Administrative Appeals Tribunal, in quasi-judicial
investigations such as Royal Commissions, and in supervisory administrative processes
such as the issue of warrants. Each of these functions retains an integrity dimension.
Although the scale of judicial participation in these activities is not immediately
overwhelming, there is evidence which suggests that extra-judicial performance of these
integrity functions is likely to continue.
A range of integrity functions may be validly conferred upon judges as designated persons or
in their individual capacity, as those functions are compatible with judicial office. A detailed
review of the incompatibility condition highlighted the increasing significance of decisional
independence in the operation of the incompatibility condition. Even the slightest
interference with the decisional independence of a judicial officer performing an extra-judicial
function potentially compromises the constitutionality of that activity.
While it is recognised that arguments both for and against extra-judicial activity have merit,
this paper suggests that, on balance, extra-judicial participation in the integrity branch is
acceptable. The assessment of the merits of extra-judicial activity on a narrower basis (in the
context of integrity functions) provided an opportunity to review traditional arguments both
supporting and rejecting extra-judicial activity. Any re-examination of the merits of extrajudicial activity should consider both the context in which extra-judicial activity is
contemplated, and the nature of the specific function in question. This conclusion is broadly
consistent with the direction provided by the Australian Institute of Judicial Administration’s
Guide to Judicial Conduct in relation to extra-judicial activity.
Chapter III of the Constitution has continuing influence on the development of Australia’s
institutions of government. While the strict separation of judicial power prevents the conferral
of non-judicial functions upon Ch III courts, non-judicial functions may be validly conferred
upon judges in their personal capacity, where these are not incompatible with judicial office.
The judges of State courts are similarly able to undertake integrity functions which do not
impair the institutional integrity of a State court. Although restricted, the range of extrajudicial activities undertaken by judicial officers in their personal capacity represents a
significant check on the exercise of public power. In their individual capacity, judges make a
significant contribution to the operation of the integrity branch. They do so in a manner, and
for a purpose, which should be recognised and maintained.
Endnotes
1
2
3
4
Peter Cane, ‘The Making of Australian Administrative Law’ (2003) 24 Australian Bar Review 114, 123.
James J Spigelman, ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724, 725.
Spigelman, above n 2, 726. The concept of ‘integrity’ itself requires little explanation; see AJ Brown, Brian
Head and Carmel Connors, ‘Introduction: Integrity Systems and Democratic Accountability’ in Brian Head,
AJ Brown and Carmel Connors (eds) Promoting Integrity: Evaluating and Improving Public Institutions
(Ashgate, 2008) 4-5 for a comprehensive review of the meaning of the term. Spigelman uses the phrase
‘institutional integrity’ to demonstrate that the integrity branch is directly concerned with the manner in which
the institutions of government perform their allotted functions, rather than the character of behaviour of the
individuals that comprise those institutions; see Spigelman, above n 2, 725.
See AJ Brown, ‘What is a National Integrity System? From Temple Blueprint to Hip-Pocket Guide’ in Brian
Head, AJ Brown and Carmel Connors (eds) Promoting Integrity: Evaluating and Improving Public
Institutions (Ashgate, 2008) 26-27, 42.
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5
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30
31
AJ Brown, ‘Putting Administrative Law back into Integrity and Putting the Integrity back into Administrative
Law’ (2006) 53 Australian Institute of Administrative Law Forum 32, 34-35. Such a characterisation has
been endorsed by Spigelman; see James J Spigelman, ‘The Significance of the Integrity System’ (2008) 4
Original Law Review 39, 41. The recognition of a ‘fourth arm’ of government is not inimical to core principles
informing Australia’s constitutional structure. The concept of the integrity branch is an extension of the
political theory of the separation of powers, which suggests that the major functions of government should
be divided and distributed amongst the range of institutions that comprise the system of government so as
to preserve the liberty of the individual citizen: see Jeremy Pope, ‘National Integrity Systems: The Key to
Building Sustainable, Just and Honest Government’ in Brian Head, AJ Brown and Carmel Connors (eds)
Promoting Integrity: Evaluating and Improving Public Institutions (Ashgate, 2008) 21. This generates a
‘mutual accountability’ amongst the institutions of government, which (in theory) reduces the opportunity for
corruption or inappropriate performance of public functions: see Charles Sampford, Rodney Smith and AJ
Brown, ‘From Greek Temple to Bird’s Nest: Towards A Theory of Coherence and Mutual Accountability for
National Integrity Systems’ (2005) 64 Australian Journal of Public Administration 96, 98.
AJ Brown and Brian Head, ‘Assessing Integrity Systems: Introduction to the Symposium’ (2005) 67
Australian Journal of Public Administration 42, 42. It is not universally agreed that the integrity branch
should be treated in this fashion; see Cheryl Saunders, The Constitution of Australia – A Contextual
Analysis (Hart Publishing, 2011) 175, where it is suggested that the fourth arm is ‘not yet sufficiently
coherent to enable the intellectual construct of a ‘system’ to be used to develop and protect it’.
Brown, above n 5, 35.
The ‘bird’s nest’ metaphor is said to imply a more open and flexible system that can function effectively
where few of the individual components are ‘independently strong’; see Sampford et al, above n 5, 104-106.
Brown, above n 4, 41. Ultimately, it may be that Frank Costigan QC’s ‘integrity family’ metaphor is the best
and most accurate way to group those institutions that perform integrity functions; see Frank Costigan,
‘Australia’s National Integrity Systems: Introducing a New Blueprint’ (2005) 64 Australian Journal of Public
Administration 40.
See Spigelman, above n 2, 730-737.
See Spigelman, above n 2, 730.
The decision of the New South Wales Court of Appeal in Greiner v Independent Commission Against
Corruption (1992) 28 NSWLR 125 is a useful example, highlighting the capacity of superior courts to ensure
that integrity institutions operate within the limits of their powers. See also James Wood, ‘Ensuring Integrity
Agencies have Integrity’ (2007) 53 Australian Institute of Administrative Law Forum 11.
This term is used simply to indicate the exercise of power that is ‘not, strictly speaking, judicial in character’:
see Enid Campbell and HP Lee, The Australian Judiciary (Cambridge University Press, 2001) 166.
These examples are treated in some detail in the literature relating to extra-judicial activities. See also
Connor, ‘The Use of Judges in Non-Judicial Roles’ (1978) 52 Australian Law Journal 482, 482, where a
similar characterisation is identified.
For a useful analysis of the manner in which the term ‘quasi-judicial’ is used in the Australia federal context,
see Peter Cane, Administrative Tribunals and Adjudication (Hart Publishing, 2010) 84-86.
See, for example, Robin Creyke and John McMillan, Control of Government Action: Text, Cases and
Commentary (LexisNexis Butterworths, 2nd edition, 2009) 155. Care must be taken in extending this
analysis of the AAT to the various State Administrative Tribunals, which are not affected by the
constitutional separation of judicial power to the same extent as federal administrative tribunals.
See Re Costello and Secretary, Department of Transport (1979) 2 ALD 934, 943 (Hall SM).
See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 (Bowen CJ and Deane J).
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1).
See Spigelman, above n 2, 730, where merits review does not seem to be treated as an integrity function;
contrast John McMillan, ‘Re-thinking the Separation of Powers’ (2010) 38 Federal Law Review 423, 440
where administrative tribunals are included in the integrity branch.
See, for example, Allan Hall, ‘Judicial Power, The Duality of Functions and the Administrative Appeals
Tribunal’ (1994) 22 Federal Law Review 13, 38-48; Peter Cane, ‘Merits Review and Judicial Review – The
AAT as Trojan Horse’ (2000) 28 Federal Law Review 213, 215, 224-225, 227.
See Sir Anthony Mason, ‘Judicial Review: A View from Constitutional and Other Perspectives’ (2000) 28
Federal Law Review 331, 333, who suggests that the process of merits review and judicial review (review of
legality) overlap, but are not co-extensive.
Administrative Appeals Tribunal Act 1975 (Cth) s 7(1).
The term Ch III judges is used in this paper to refer compendiously to Judges of the Federal Court, Judges
of the Family Court and Federal Magistrates.
Administrative Appeals Tribunal Act 1975 (Cth) s 6(1).
See Part III below.
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158, 161 (Brennan J (President)).
The limitations of the judicial model of decision-making have always been understood by those who first
implemented them; see, for example, Sir Gerard Brennan, ‘Twentieth Anniversary of the AAT: Opening
Address’ in John McMillan (ed) The AAT: Twenty Years Forward (Australian Institute of Administrative Law,
1998) 5.
See Administrative Appeals Tribunal, Annual Report 2010-2011, 9.
Brennan, above n 27, 13; see also Rosemary Balmford, ‘Administrative Tribunals and Sir Gerard Brennan –
Some Specific Topics’ in Robin Creyke and Patrick Keyzer (eds), The Brennan Legacy – Blowing the Winds
of Legal Orthodoxy (Federation Press, 2002) 107-108.
The Administrative Appeals Tribunal’s Annual Report 2010-2011 indicates that judicial involvement occurs
in between 0.5% and 1% of the hearings conducted by the Tribunal, and has occurred at a similar rate over
the previous two years; see Administrative Appeals Tribunal, Annual Report 2010-2011, 136.
Leonard Hallett, Royal Commissions and Boards of Inquiry (Law Book Co, 1982) 1.
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33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
Scott Prasser, Royal Commissions and Public Inquiries in Australia (LexisNexis Butterworths, 2006) 22-29;
note that the Australian Law Reform Commission recently adopted Prasser’s framework in Australian Law
Reform Commission, Making Inquiries – A New Statutory Framework, Report No 111 (2009) 57.
Prasser, above n 32, 23.
Prasser, above n 32, 23; see also Royal Commissions Act 1902 (Cth), ss 2, 6B, 6F.
For a detailed review of the history of judicial involvement in Royal Commissions, see Sir Murray
McInerney, ‘The Appointment of Judges to Commissions of Inquiry and Other Extra-Judicial Activities’
(1978) 52 Australian Law Journal 540; Sir Murray McInerney, Garrie Moloney and Douglas McGregor in
Glenys Fraser (ed), Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals (Australian
Institute of Judicial Administration Inc, 1986); Tom Sherman, ‘Should Judges Conduct Royal Commissions’
(1997) 8 Public Law Review 5; George Winterton, ‘Judges as Royal Commissioners’ (1987) 10 University of
New South Wales Law Journal 108.
Hallett, above n 31, 10; Sherman, above n 35, 6.
Prasser, above n 32, 27.
See Spigelman, above n 2, 729.
The obvious example in the New South Wales context is the ‘Wood’ Royal Commission (New South Wales,
Royal Commission into the New South Wales Police Service (1997)).
Prasser, above n 32, 49.
See Prasser, above n 32, 49, who refers to the 1974 Royal Commission into Human Relationships, which
(at first glance) does not seem to be concerned with matters of propriety in the exercise of public power.
Sherman, above n 35, 6; contrast Spigelman, above n 2, 729, which addresses Royal Commissions as an
aspect of executive government.
This power has been augmented by statute in the Commonwealth jurisdiction; see Australian Law Reform
Commission, Making Inquiries – A New Statutory Framework, Report No 111 (2009) 65-67, and the
authorities cited therein.
It is notoriously difficult to draw a broad conclusion regarding the conduct of Royal Commissions in the
Australian context; see discussion of the Irvine Memorandum at n 159 below.
Prasser, above n 32, Appendix 1.
Ibid.
Kuru v New South Wales (2008) 236 CLR 1, 15 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ)
(emphasis added).
See Part II below.
See, for example, Wainohu v New South Wales (2011) 243 CLR 181, 200 n 95 and 96 [26] (French CJ and
Kiefel J) (Wainohu).
This particular enactment has been used as an example as it was (in earlier incarnations) the source of the
disputes in Hilton v Wells (1985) 157 CLR 57 (Hilton) and Grollo v Palmer (1995) 184 CLR 348 (Grollo),
discussed below.
The inclusion of nominated AAT members as authorising officers was effected by the Telecommunications
(Interception) and Listening Device Amendment Act 1997 (Cth); see now Telecommunications (Interception
and Access) Act 1979 (Cth), s 6DA. Nominated AAT members involved in this activity would also be
characterised as performing an integrity function.
‘Issuing authority’ is the term used to refer compendiously to both eligible Judges and nominated AAT
members for the purposes of the Telecommunications (Interception and Access) Act 1979 (Cth).
See Telecommunications (Interception and Access) Act 1979 (Cth) s 103(ab).
Figure 1 is generated from data obtained from Reports prepared by the Attorney-General’s Department in
accordance with the Telecommunications (Interception and Access) Act 1979 (Cth). The raw data contained
in these reports has been tabulated and the proportion of issuing authorities presented in graphical form.
These reports (prepared annually) identify the number of Ch III judges and the number of nominated AAT
members available to issue warrants under s 46 Telecommunications (Interception and Access) Act 1979
(Cth) in the reporting period (the reporting period extends from 1 July to 30 June). The data utilised in the
preparation of Figure 1 was first published in Attorney-General (Commonwealth), Telecommunications
(Interception) Act 1979 (Cth) – Report for the year ending 30 June 1998 (1998). Reports for the reporting
periods ending 30 June 1996 to 30 June 1999 do not appear to be available in electronic form. Reports
presented for the reporting periods ending 30 June 2000 to 30 June 2011 are available at
http://www.ag.gov.au/Publications/Pages/PublicationsbyAtoZ.aspx#T. Note that the reports appears as
Attorney-General (Commonwealth), Telecommunications (Interception and Access) Act 1979 (Cth) – Report
for the year ending 30 June 2006 (2006) in the years 2006 to 2011. Note that the range of agencies eligible
to apply for telecommunications interception warrants under Part 2-5 Telecommunications (Interception and
Access) Act 1979 (Cth) has changed on several occasions throughout the period in which this data has
been collected.
Table 1 is generated from data obtained from Reports prepared by the Attorney-General’s Department in
accordance with the requirements of the Telecommunications (Interception and Access) Act 1979 (Cth) in
the years 1997-1998 to 2010-2011. The availability of that data is as outlined in n 54 above.
Figure 2 is generated from data obtained from Reports prepared by the Attorney-General’s Department in
accordance with the requirements of the Telecommunications (Interception and Access) Act 1979 (Cth) in
the years 1997-1998 to 2010-2011. The availability of that data is as outlined in n 54 above; the
qualifications expressed therein also apply. The relatively sharp increase in judicial participation in the
warrant issuing function in the 2003-2004 reporting period is difficult to explain. A brief investigation reveals
that applications of the New South Wales Police were directed almost exclusively to Federal Magistrates in
the 2003-2004 reporting period, in stark contrast to the 2002-2003 and 2004-2005 reporting periods, where
applications were directed almost exclusively to nominated AAT members. The relevant report (AttorneyGeneral (Commonwealth), Telecommunications (Interception and Access) Act 1979 (Cth) – Report for the
year ending 30 June 2004 (2004) 44) contains no direct analysis or explanation of the seemingly anomalous
result.
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79
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81
82
83
84
85
86
87
88
89
Attorney-General (Commonwealth), Telecommunications (Interception and Access) Act 1979 (Cth) – Report
for the year ending 30 June 2011 (2011) 51.
Note that it would seem inappropriate (in this author’s view) to translate a conclusion relating to this
particular example across judicial participation in the warrant issuing function more broadly. The information
addressed in this paper relates only to the issuing of telecommunications service warrants. It is not clear
that this data supports any conclusion beyond the context of this particular type of warrant under this
particular statutory scheme.
Fiona Wheeler, ‘Federal Judges as Holders of Non-judicial Office’ in Brian Opeskin and Fiona Wheeler
(eds) The Australian Federal Judicial System (Melbourne University Press, 2000) 451.
Constitution, s 71.
The difficulties encountered in classifying governmental powers are reflected in the recognition of a
category of innominate powers. Innominate powers are those which might be classified as being of either a
‘judicial’ or ‘non-judicial’ nature. The related concept of the ‘chameleon principle’ dictates that innominate
powers take their character from the body in which they are reposed by the legislature; for discussion of the
relationship between the concepts of ‘innominate powers’ and the ‘chameleon doctrine’ see James Stellios,
The Federal Judicature: Chapter III of the Constitution – Commentary and Cases (LexisNexis Butterworths,
2010) 146.
Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ).
Ibid.
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374 (Kitto J)
(Tasmanian Breweries).
Ibid.
Tasmanian Breweries (1970) 123 CLR 361, 394 (Windeyer J); Brandy v Human Rights and Equal
Opportunity Commission (1995) 183 CLR 245, 267 (Deane, Dawson, Gaudron and McHugh JJ).
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 67
(McHugh J).
R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 271-272 (Dixon CJ, McTiernan,
Fullagar and Kitto JJ) (Boilermakers’).
New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54, 89-90 (Isaacs J).
Boilermakers’ (1956) 94 CLR 254, 271-272 (Dixon CJ, McTiernan, Fullagar and Kitto JJ)
See James Stellios, ‘Reconceiving the Separation of Judicial Power’ (2011) 22 Public Law Review 113,
114.
See, for example, Stellios, above n 71.
Some functions have been historically reposed in courts, and their continued exercise is justified on that
basis; see, for example, Chief Justice Robert French, ‘Executive Toys: Judges and Non-judicial Functions’
(2009) 19 Journal of Judicial Administration 5, 14-16. The ‘chameleon principle’ might also be characterised
as an exception to the second element of the separation of federal judicial power.
An examination of the ‘formalist’ and ‘functionalist’ approaches to the separation of judicial power is beyond
the scope of this paper. For discussion of formalism and functionalism, see Sir Anthony Mason, ‘A New
Perspective on the Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1; Walker,
below n 75; Campbell, below n 99; Meyerson, below n 93.
Kristen Walker, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law
Review 153, 154.
As a principle of statutory interpretation, the persona designata concept has application in a range of
contexts that do not involve judicial officers. Nevertheless, one of the most common contexts in which the
doctrine was encountered was the ‘conferring of judicial jurisdiction’; see D M Gordon, ‘Persona Designata’
(1927) 11 Canadian Bar Review 174, 174.
Gordon, above n 76, 174.
In dissent in Boilermakers’, Webb J observed that the majority position might be overcome by legislation
which empowered judges to exercise arbitral powers as designated persons; see Boilermakers’ (1956) 94
CLR 254, 329-330 (Webb J).
Grollo (1995) 184 CLR 348, 363 (Brennan CJ, Deane, Dawson and Toohey JJ).
Boilermakers’ (1956) 94 CLR 254, 330 (Webb J). See also Geoffrey Sawer, ‘The Separation of Powers in
Australian Federalism’ (1961) 35 Australian Law Journal 177, 180-182.
This may have more to do with a decline in the use of the concept as a drafting mechanism, and a more
widespread failure to accept the second limb of Boilermakers’ (which was the ‘target’ of the exception) than
acceptance of the concept.
Hilton (1985) 157 CLR 57, 72-73 (Gibbs CJ, Wilson and Dawson JJ); cf 86 (Mason and Deane JJ).
Both the non-judicial nature of the warrant issuing power, and the fact that the warrant issuing power took
effect as a result of the statutory scheme (rather than the inherent or implied powers of the Court of which
the Judge was a member) were influential factors in the majority decision. Gibbs CJ, Wilson and Dawson JJ
also noted that s 20 Telecommunications (Interception) Act 1979 (Cth) required specific authorisation in
relation to individual judges in the States and Territories; this inconsistency was said to suggest that the
functions were conferred on all judges in their individual non-judicial capacity: Hilton (1985) 157 CLR 57, 7273 (Gibbs CJ, Wilson and Dawson JJ).
Hilton (1985) 157 CLR 57, 80 (Mason and Deane JJ).
Hilton (1985) 157 CLR 57, 81 (Mason and Deane JJ).
Mason and Deane JJ regarded the conferral of functions on some judges in an individual extra-judicial
capacity as an indication that Parliament intended to confer functions on judges otherwise treated in the
statute in their judicial capacity: see Hilton (1985) 157 CLR 57, 85-86 (Mason and Deane JJ).
Grollo (1995) 184 CLR 348, 361-362 (Brennan CJ, Deane, Dawson and Toohey JJ)
Hilton (1985) 157 CLR 57, 84 (Mason and Deane JJ).
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 41 (Kirby J) (‘Wilson’).
See Fiona Wheeler, ‘Original Intent and the Doctrine of the Separation of Powers in Australia’ (1996) 7
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108
109
110
111
112
113
114
115
116
117
118
Public Law Review 96, 100-102 for analysis of the failed attempt to prohibit judicial officers from holding
executive office.
See, for example, Crimes (Criminal Organisation Control) Act 2012 (NSW) s 5; Inspector of Transport
Security Act 2006 (Cth) s 78.
The majority were concerned that the independence of individual judges might be compromised or that
extra-judicial activities might compromise the capacity of individual judges to perform their judicial functions:
see Hilton (1985) 157 CLR 57, 73-74 (Gibbs CJ, Wilson and Dawson JJ). Mason and Deane JJ seem to be
more concerned with the relationship between the function conferred persona designata and the
performance of the judicial function more broadly; see Hilton (1985) 157 CLR 57, 83 (Mason and Deane JJ).
These differences reflect the alternate views of the judges as to the appropriate construction of the statute
in question.
This term is adapted from the joint judgment in Grollo; see Grollo (1995) 184 CLR 348, 365 (Brennan CJ,
Deane, Dawson and Toohey JJ).
Denise Meyerson, ‘Extra-Judicial Service on the Part of Judges: Constitutional Impediments in Australia and
South Africa’ (2003) 3 Oxford Commonwealth University Law Journal 181, 188.
Wilson (1996) 189 CLR 1.
Grollo (1995) 184 CLR 348, 368-369 (Brennan CJ, Deane, Dawson and Toohey JJ), 398 (Gummow J);
compare 378-384 (McHugh J).
Grollo (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ).
Grollo (1995) 184 CLR 348, 365 (Brennan CJ, Deane, Dawson and Toohey JJ).
The shorthand references to the ‘species’ of incompatibility are adapted from Walker, above n 75, 159.
Although the limitations of the concept of ‘public confidence’ in this area are recognised (see Elizabeth
Handsley, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ (1998) 20
Sydney Law Review 183), this label is retained for the sake of consistency with earlier analyses of the
decisions in Grollo and Wilson. The public confidence referred to in this instance might be characterised as
‘deemed’ public confidence; see HP Lee and Patrick Emerton, ‘Judges and non-judicial functions in
Australia’ in HP Lee (ed) Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 411412, citing Colin Campbell, ‘An Examination of the Doctrine of Persona Designata in Australian Law’ (2000)
7 Australian Journal of Administrative Law 109, 114, 120.
Wilson (1996) 189 CLR 1, 20 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ), 26 (Gaudron J);
compare 47, 39-47 (Kirby J).
This label reflects the language employed by French CJ in South Australia v Totani (2010) 242 CLR 1, 43
[62], 48 [70], 51 [78], 52 [82] (French CJ) and in the joint judgment of French CJ and Kiefel J in Wainohu v
New South Wales (2011) 243 CLR 181, 216 [61], 216 [62], 217 [64] (French CJ and Kiefel J). The term has
been defined by Martin Redish as indicating ‘free[dom] from external or extraneous influences and
pressures that might reasonably be thought to affect a decision’; see Martin Redish, ‘Federal Judicial
Independence: Constitutional and Political Perspectives’ (1995) 46 Mercer Law Review 697, 707. See also
Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional
Principles and Limitations (Hart Publishing, 2009) 1.
For the genesis of this passage (and the quotations within), see Wilson (1996) 189 CLR 1, 17 (Brennan CJ,
Dawson, Toohey, McHugh and Gummow JJ).
See, for example, Walker, above n 75, 163-164.
Wheeler, above n 59, 463-464.
Fiona Wheeler, ‘The Use of Federal Judges to Discharge Executive Functions: The Justice Matthews Case’
(1996) 11 Australian Institute of Administrative Law Forum 1, 5-6.
Wilson (1996) 189 CLR 1, 20 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
Wilson (1996) 189 CLR 1, 26 (Gaudron J).
See Enid Campbell, ‘Constitutional Protection of State Courts and Judges’ (1997) 23 Monash University
Law Review 397, 398 n 8 for relevant authorities.
Kable (1996) 189 CLR 51, 96, 98 (Toohey J), 102-103 (Gaudron J), 116-119 (McHugh J), 127-128
(Gummow J); see also South Australia v Totani (2010) 242 CLR 1, 47 [69] (French CJ).
Constitution, s 73(ii); see Kirk v Industrial Court (New South Wales) (2010) 239 CLR 531, 580-581 [96][100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The High Court has found that State legislation infringed the Kable principle on more than one occasion;
see International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319;
South Australia v Totani (2010) 242 CLR 1; Wainohu (2011) 243 CLR 181. See also the decision in Kirk v
Industrial Court (New South Wales) (2010) 239 CLR 531, which bears some relation to the Kable principle.
See Chris Steytler and Iain Field, ‘The “Institutional Integrity” Principle: Where Are We Now, and Where Are
We Headed?’ (2001) 35 University of Western Australia Law Review 227, Ayowande McCunn, ‘The Search
for a Single Standard for the Kable Principle’ (2012) 19 Australian Journal of Administrative Law 93 for
further analysis of the development of the Kable principle. Will Bateman’s observations regarding the
accuracy of the ‘Kable principle’ label are noted; see Will Bateman, ‘Procedural Due Process under the
Australian Constitution’ (2009) 31 Sydney Law Review 411, 434.
See Kable (1996) 189 CLR 51, 117-118 (McHugh J).
These principles would also presumably apply to the Territories in equal measure.
See Rebecca Welsh, ‘”Incompatibility” Rising? Some Potential Consequences of Wainohu v New South
Wales’ (2011) 22 Public Law Review 259.
Wainohu (2011) 243 CLR 181, 219 [68], 220 [70] (French CJ and Kiefel J), 229-230 [109] (Gummow,
Hayne, Crennan and Bell JJ).
Wainohu (2011) 243 CLR 181, 211 [49] (French CJ and Kiefel J).
Wainohu (2011) 243 CLR 181, 212 [50] (French CJ and Kiefel J).
Wainohu (2011) 243 CLR 181, 229 [106]-[107] (Gummow, Hayne, Crennan and Bell JJ). By way of
contrast, Heydon J in his dissenting opinion expressed no doubt as to the operation and relevance of the
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persona designata concept in determining that the relevant functions were conferred upon State judges as
designated persons: see Wainohu (2011) 243 CLR 181, 245 [168] (Heydon J).
Wainohu (2011) 243 CLR 181, 225-226 [94] (Gummow, Hayne, Crennan and Kiefel JJ).
See Wainohu (2011) 243 CLR 181, 207 [41] (French CJ and Kiefel J) where their Honours discuss factors
affecting the conclusion in Wilson.
See Wainohu (2011) 243 CLR 181, 201-202 [30] (French CJ and Kiefel J), where it is noted that ‘questions
of compatibility which require evaluative judgments are unlikely to be answered by the application of
precisely stated verbal tests’.
Wilson (1996) 189 CLR 1, 25-26 (Gaudron J).
See footnotes 104 and 105 and accompanying text.
The ‘close connection question’ in particular would seem to be of reduced significance in the absence of a
strict separation of judicial power in the States. The ‘political grounds question’ may also be of decreased
significance in the State sphere, but does not appear to have been in issue in Wainohu.
Wainohu (2011) 243 CLR 181, 200 [27] (French CJ and Kiefel J). In argument, the plaintiff noted not only
the demands placed upon the time of individual judges, but also stressed the reliance of a designated judge
on court staff and court facilities (including a court room) in the performance of extra-judicial functions; see
Transcript of Proceedings, Wainohu v New South Wales [2010] HCA Trans 319 (2 December 2010), 533574 (Kiefel J and M A Robinson), 1604-1606 (M A Robinson).
See s 5(6)(b) Crimes (Criminal Organisations Control) Act 2009 (NSW).
Wainohu (2011) 243 CLR 181, 225 [93] (Gummow, Hayne, Crennan and Kiefel JJ).
Transcript of Proceedings, Wainohu v New South Wales [2010] HCA Trans 319 (2 December 2010), 533574 (Kiefel J and M A Robinson), 3146-3154 (R J Meadows QC).
Transcript of Proceedings, Wainohu v New South Wales [2010] HCA Trans 319 (2 December 2010), 533538 (M A Robinson).
Grollo (1995) 184 CLR 348, 365, 368-369 (Brennan CJ, Deane, Dawson and Toohey JJ).
Wainohu (2011) 243 CLR 181, 225 [94] (Gummow, Hayne, Crennan and Kiefel JJ).
Wainohu (2011) 243 CLR 181, 200-201 [27], 201-202 [30] (French CJ and Kiefel J).
Walker, above n 75, 162.
Wilson (1996) 189 CLR 1, 16 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 413 (Bowen CJ and Deane J), 423
(Smithers J) (Drake).
The question is discussed in Hilton (1985) 157 CLR 57, 69 (Gibbs CJ, Wilson and Dawson JJ) and Wilson
(1996) 189 CLR 1, 17-18 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ), 26 (Gaudron J). See
also Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, 260-261 [64]-[67] (Weinberg, Bennett and
Edmonds JJ) (Hussain). Nevertheless, it is submitted that the legislative intention informing the
Administrative Appeals Tribunal Act 1975 (Cth) is not unequivocal. The descriptor ‘Judges’ is used to
identify persons eligible for appointment as members of the Tribunal: Administrative Appeals Tribunal Act
1975 (Cth), ss 6(2), 7(1). The term ‘Judges’, in the statutory scheme, refers to ‘a Judge of a court created by
the [federal] Parliament’ (see Administrative Appeals Tribunal Act 1975 (Cth), s 3), without any express
indication that the term refers simply to Judges as a class of person eligible for appointment to the Tribunal.
A similar formulation had posed difficulties for the High Court in Hilton: see Hilton (1985) 157 CLR 57, 84
(Mason and Deane JJ).
However, several features of the Administrative Appeals Tribunal Act 1975 (Cth) indicate a legislative
intention to confer membership of the AAT on ‘Judges’ as designated persons. The AAT does not have
power to enforce its decisions, which are treated as decisions of the person or office whose activities are
under review: Administrative Appeals Tribunal Act 1975 (Cth), s 43(6). In performing functions, members of
the Tribunal receive the same protections and immunities as a judge of the High Court: Administrative
Appeals Tribunal Act 1975 (Cth), s 60. All members of the AAT may resign their commission at any time,
effectively ensuring that participation in the Tribunal is consensual: Administrative Appeals Tribunal Act
1975 (Cth), s 15. Further, and despite the AAT retaining some characteristics indicating that it exercises
judicial power, the powers of the Tribunal are best classified as executive in nature: see Hall, above n 21,
54-55. These factors, absent in Hilton, support the prevailing assumption that membership of the AAT is
conferred validly upon judicial officers as designated persons.
Wilson (1996) 189 CLR 1, 17-18 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
Wilson (1996) 189 CLR 1, 17-18 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
See Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 636-646 (Brennan J).
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 (Bowen CJ and Deane J).
The Security Appeals Division is one of the divisions of the AAT; see Administrative Appeals Tribunal Act
1975 (Cth), s 19(2)(baa). A presidential member must preside over a hearing in the Security Appeals
Division of the Tribunal: see Administrative Appeals Tribunal Act 1975 (Cth), s 21AA(2). Section 39A
Administrative Appeals Tribunal Act 1975 (Cth) empowers the relevant minister (the Minister responsible for
administering the Australian Security Intelligence Organisation Act 1979 (Cth)) to issue a security/defence
certificate indicating that particular evidence affecting a security assessment is not to be disclosed to the
person subject to the security assessment in the process of merits review; see Administrative Appeals
Tribunal Act 1975 (Cth), s 39A(8)-(9). Section 39B Administrative Appeals Tribunal Act 1975 (Cth)
empowers the Attorney-General to issue a certificate which effectively prevents the disclosure of the
contents of particular documents in proceedings before the Security Appeals Division; see Administrative
Appeals Tribunal Act 1975 (Cth), s 39B(2).
Hussain (2008) 169 FCR 241, 277 [151], 280 [171] (Weinberg, Bennett and Edmonds JJ).
Hussain (2008) 169 FCR 241, 279-280 [166] (Weinberg, Bennett and Edmonds JJ).
See ss 39A(3), (5), (9), (10), (17) and ss 39B(3), (7) Administrative Appeals Tribunal Act 1975 (Cth), which
demonstrate that the provisions in question focus on the protection of information provided to the Tribunal in
the course of a hearing, rather than authorising the withholding of information from the Tribunal.
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145 Wilson (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
146 The majority judgments in Wilson were particularly careful to emphasise judicial manner of performance as
an indicator of decisional independence. See Wilson (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey,
McHugh and Gummow JJ), 26 (Gaudron J).
147 See, for example, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 455 [50] (Gaudron, Gummow and
Hayne JJ). Although this observation is made in a case concerned with the apprehension of bias, there
seems to be no reason why the observation cannot be transferred to the ‘hearing rule’. See also Hussain
(2008) 169 FCR 241, 279 [163] (Weinberg, Bennett and Edmonds JJ).
148 The Federal Court’s Annual Report notes as much, reporting that three judges undertake work ‘as members
of other courts or tribunals [which occupies] all, or most, of their time’. However, the relevant judges and
tribunals are not identified in the report; see Federal Court of Australia, Annual Report 2010-2011 (2011) 3.
149 See n 29-30 and accompanying text above.
150 Royal Commissions Act 1902 (Cth), s 1A.
151 In the sense that there is no indication of an intention to confer non-judicial power on a judicial officer by
reference to the judicial officer in their individual or private capacity; see also Wainohu (2011) 243 CLR 181,
207 [40] (French CJ and Kiefel J).
152 The term persona designata would, in this context, be used as a shorthand expression of the exception to
the second limb of the separation of federal judicial power which permits the conferral of non-judicial
functions on judicial officers in their individual capacity. In particular, a ‘person’ conducting a Royal
Commission receives the same protection and immunity as a Judge of the High Court,152 and a judicial
officer holding a Royal Commission is empowered to punish for contempt: Royal Commissions Act 1902
(Cth), s 6O(2). These provisions suggest an awareness that a ‘judicial’ Royal Commissioner does not retain
inherent powers or protections when conducting the Commission, which is a task undertaken in an extrajudicial capacity.
153 This phrase is used to refer to the narrow subset of Royal Commissions identified as integrity functions in
Part I of this paper.
154 Wilson (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
155 Prasser, above n 32, 26; AJ Brown, ‘The Wig or the Sword? Separation of Powers and the Plight of the
Australian Judge’ (1992) 21 Federal Law Review 48, 54-55.
156 Prasser, above n 32, Appendix 1.
157 See Part II above.
158 See Part IV below.
159 Judges of the Supreme Court of Victoria have been reluctant to conduct Royal Commissions, a position that
can be traced to the Irvine Memorandum of 1923. On the other hand, Justices of the New South Wales
Supreme Court have not (generally speaking) displayed a similar lack of enthusiasm for the task; see
Winterton, above n 35, 110. For detailed analysis of historical (judicial) attitudes to Royal Commissions in
the various Australian jurisdictions, see JD Holmes, ‘Royal Commissions’ (1955) 29 Australian Law Journal
253, McInerney, above n 35, Hallett, above n 31, and McInerney et al, above n 35.
160 French, above n 73, 16.
161 Grollo (1995) 184 CLR 348, 361-362 (Brennan CJ, Deane, Dawson and Toohey JJ), 374-375 (McHugh J).
162 Grollo (1995) 184 CLR 348, 366-367 (Brennan CJ, Deane, Dawson and Toohey JJ).
163 It is not immediately clear that the warrant issuing function addressed in Grollo would necessarily ‘pass’ the
Wilson inquiry with respect to public confidence incompatibility; see, for example, Wilson (1996) 189 CLR 1,
26 (Gaudron J) where her Honour suggests that extra-judicial participation in the warrant issuing process is
valid as a result of historical practice, rather than the absence of incompatibility.
164 Telecommunications (Interception and Access) Act 1979 (Cth), ss 42(2), 46(1).
165 Telecommunications (Interception and Access) Act 1979 (Cth), ss 44, 46(1).
166 Telecommunications (Interception and Access) Act 1979 (Cth), ss 46(2).
167 Grollo (1995) 184 CLR 348, 367 (Brennan CJ, Deane, Dawson and Toohey JJ).
168 See n 129 above.
169 Such a conclusion would, of course, be contrary to the majority position in Grollo. The argument would,
however, find support in the dissenting opinion of McHugh J in Grollo and the dissenting judgment of Kirby J
in Wilson. See n 95 and 100 above respectively.
170 Wilson (1996) 189 CLR 1, 26 (Gaudron J).
171 Compare Grollo (1995) 184 CLR 348, 383 (McHugh J).
172 Jack Beatson, ‘Should Judges Conduct Public Inquiries’ (2005) 121 Law Quarterly Review 221, 222.
173 Ibid, 234-235.
174 See, for example, Winterton, above n 35, 118.
175 This seems to have been the primary concern of the Judges of Victorian Supreme Court in determining that
it would be inappropriate for one of their number to conduct a Royal Commission in 1923. See n 159 above
and the sources cited therein (particularly McInerney, above n 35, which contains a full reproduction of the
Irvine Memorandum; see 541-542).
176 Beatson, above n 172, 234-235.
177 Justice Gerard Brennan, ‘Limits on the Use of Judges’ (1978) 9 Federal Law Review 1, 12. Although it is not
clear that the comments of Brennan J (as he then was) were specifically directed to extra-judicial activities,
the range of tasks considered in his analysis suggests that the analysis relates to those activities; see 11.
178 Beatson, above n 172, 230.
179 Murray Gleeson, ‘The Judicial Method: Essentials and Inessentials’ (2010) 9 The Judicial Review 377, 382.
See also Wilson (1996) 189 CLR 1, 25-26 (Gaudron J).
180 Brennan, above n 27, 13. See also Justice Michael Barker, ‘On Being a Ch III Judge’ (2010) 35 University of
Western Australia Law Review 1, 28.
181 Beatson, above n 172, 243.
182 See, for example, Walker, above n 75, 164; Winterton, above n 35, 113.
183 See Part I above.
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184 See, for example, Commonwealth Electoral Act 1918 (Cth) ss 5, 6 which permits either an active judge or a
retired judge to serve as chairperson of the Australian Electoral Commission.
185 Beyond the historically entrenched practice of the Chief Justice serving as Lieutenant-Governor in some of
the Australian States, including New South Wales: see Wainohu (2011) 243 CLR 181, 197 n 78 [22]
(French CJ and Kiefel J).
186 See, for example, Winterton, above n 35, 110.
187 Australian Institute of Judicial Administration, Guide to Judicial Conduct (2nd ed, 2007) 21.
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